Procedural Considerations and JUDICIAL NOTICE

Question 1

PROCEDURE FOR PRELIMINARY FACT CONSIDERATIONS BY JUDGE

WHAT EVIDENCE MAY BE CONSIDERED

Answer 1

FRE:
When the judge alone determines the existence of a preliminary fact, they may consider any nonprivileged relevant evidence, even if not otherwise admissible under the rules of evidence
(judge may consider evidence that would be barred by the hearsay rule).

CA:
CEC is the opposite—the judge is bound by the rules of evidence when determining the existence of a preliminary fact (judge cannot use inadmissible hearsay evidence in making the determination).

Question 2

JUDICIAL NOTICE

JUDGE’S DISCRETION

Answer 2

BOTH:
Under federal and California law, a fact is appropriate for judicial notice if:
(1) it is generally known within court’s jurisdiction, or
(2) it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

As a general rule, judicial notice of a fact is mandatory only if a party requests it.
If not requested, judge has discretion to take judicial notice on their own accord.

CA:
Under CEC, even if not requested, judge must take judicial notice of matters of general knowledge that are “universally known.” Otherwise, same as Federal Rule.

Question 3

JUDICIAL NOTICE

CONCLUSIVENESS

Answer 3

Judicially noticed facts are conclusive in civil cases but not in criminal cases. Under CEC, judicially noticed facts are conclusive in both civil and criminal cases.